TNAG-1333-FCO40-1765-Future-of-Hong-Kong-legislation-1985 — Page 145

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eft the termination of sovereignty which would not be made until

nearer to 1997. Some members of the Executive Council in Hong Kong

would prefer this. This would however be of little practical use as

a deterrent to the Chinese: our rights on the leased territories

disappear in 1997 anyway, and the remaining territory is not viable on its own. Option (ii) would have the presentational advantages,

since the transfer of sovereignty is so far in the future, of

leaving the final decision to be taken after the Chinese have

published their Basic Law. But there is an important consideration

in the other direction. The Attorney General has advised that, if

option (ii) is followed and if ratification is to precede the making

of the Order in Council the latter must not be subject to either

affirmative or negative Parliamentary procedure. There could well

be pressure from Parliament to make it so subject, particularly as

members might take the view that Parliament should see the Basic Law

before taking a final decision. Although there are precedents

(particularly in the case of Rhodesia) for subordinate legislation

on a transfer of sovereignty not to be subject to further Parliamentary consideration, these might not be sufficient to persuade Parliament to allow the same power in this case.

the Chinese might look askance at our

our insisting on leaving

legislation until a later date. These considerations tend to militate in favour of option (i). The only serious drawback of this

option is that the Government might be criticised for legislating

definitively so far in advance. On the other hand the Government could argue plausibly that since the date is now clearly defined, there is no reason not to legislate. Moreover, in the unlikely event of a future government not wishing to go through with the transfer of sovereignty in 1997, the legislation could be repealed before then. For these reasons option (i) therefore seems

the best course open to us on the termination of sovereignty.

(b)

Amendment of the British Nationality Act:

Finally,

It is not necessary to include amendment of the British Nationality Act in the legislation as a preliminary to ratification, and there are arguments for and against doing so. To deal with this aspect in

this Act would avoid the need for a future independent Act to amend

the BNA. Such an Act could give rise to pressures in Parliament for wider amendments to the BNA unconnected with Hong Kong. Moreover,

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